Shackleton v Police - [2020] NZHC 384

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000108

[2020] NZHC 384

BETWEEN
MICHAEL SCOTT SHACKLETON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 February 2020

Appearances:

Appellant in person

A Harvey for Respondent

Judgment:

5 March 2020

JUDGMENT OF OSBORNE J

(on appeal)

This judgment was delivered by me on 5 March 2020 at 2.30 pm Registrar/Deputy Registrar

Date:

SHACKLETON v POLICE [2020] NZHC 384 [5 March 2020]

[1] Michael Shackleton was served with infringement notices for offences said to have occurred on 22 May 2017, being:

(a)operating a heavy motor vehicle at a speed exceeding 90 km/h (the allegation being 123 km/h); and

(b)operating a heavy road user charges (RUC) vehicle on a road where the reading of the distance recorder fitted to the vehicle exceeded the maximum reading specified in the distance licence for the vehicle by more than 500 km (the allegation being that the excess was 4,138 km).

[2] The vehicle Mr Shackleton was driving was a Dodge Ram, which has a gross vehicle mass of 4,000 kg.

[3] Mr Shackleton pleaded not guilty. After it became apparent that a prompt hearing was unavailable in the District Court at Westport, the proceeding was transferred to Christchurch for hearing.

The formal proof judgment

[4] Judge W K Hastings, on a formal proof hearing on 2 August 2018, found both infringements proved (the formal proof judgment). His Honour imposed fines of $300 for the speeding offence and $1,000 for the RUC offence.1 Mr Shackleton had not appeared at the hearing.

[5] Mr Shackleton applied for a rehearing. He stated as his grounds for rehearing that the District Court had sent the notice of the 2 August 2018 hearing date to him at an incorrect address. The notice was sent to an address in Tucson Place in Christchurch. With his application for rehearing, Mr Shackleton attached evidence that his residential address was elsewhere. In his application, Mr Shackleton also referred to previous email correspondence he had with the District Court in July- August 2017 outlining his (substantive) issues with the infringement notices. He

1 Police v Shackleton [2019] NZDC 16893.

ticked the “yes” box in the District Court standard form on notice of application which asked whether the applicant requests an oral hearing.

[6] The prosecutor filed a three-page written submission. There is no evidence that Mr Shackleton was informed of his right to reply to that submission or that the Court was proceeding to deal with his application on the papers.

The rehearing judgment

[7] Judge Hastings dealt with the application for rehearing on 29 November 2018 on the papers (the rehearing judgment).2

[8] In the rehearing judgment, the Judge identified that Mr Shackleton’s ground of application was that the notice of hearing had been sent to the wrong address.

[9] His Honour then set out s 177 of the Act and referred to authority in relation to the test of “miscarriage of justice” adopted in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shackleton v Police

Details

AGLC: Shackleton v Police [2020] NZHC 384
Case: [2020] NZHC 384
Decision Date: 5 March 2020

CaseChat Overview and Summary

In the case of Shackleton v Police, the appellant, Michael Scott Shackleton, appealed the District Court's dismissal of his application for a rehearing of two traffic infringement notices. The first notice was for operating a heavy motor vehicle at a speed exceeding 90 km/h, and the second was for operating a heavy road user charges (RUC) vehicle on a road where the reading of the distance recorder fitted to the vehicle exceeded the maximum reading specified in the distance licence for the vehicle by more than 500 km. Shackleton contended that he had not been properly notified of the hearing date, leading to his absence at the formal proof hearing, and sought a rehearing. The legal issues before the court were whether the District Court should have been satisfied that Shackleton had not been notified of the trial, and if so, whether a rehearing should have been granted, and if so, what the appropriate outcome should be.

The High Court found that Shackleton had not been properly notified of the hearing date, as the notice was sent to an incorrect address. The court also found that the District Court should have been satisfied that Shackleton had not been notified of the trial under s 125(8) of the Criminal Procedure Act 2011, and thus, a retrial should have been ordered. Furthermore, the court found that Shackleton had a reasonable prospect of success in defending the speeding charge, as there was doubt about the classification of his vehicle as a heavy motor vehicle. The court also found that the District Court had a discretion in imposing the fine for the RUC offence, contrary to the prosecutor's submission, and that Shackleton would have been entitled to invoke that discretion had he been given the opportunity.

As a result, the appeal was allowed, and the infringement notice was amended. For the speeding offence, a fine of $200 was imposed instead of $300. For the RUC offence, a fine of $500 was imposed instead of the original $1,000 fine. The court ordered that the appeal against the District Court's dismissal of Shackleton's application for a rehearing was allowed, the infringement notice was amended, and the fines were substituted as per the judgment.

Orders